Canadian Copyright Reform In Force: Expanded User Rights Now the Law
Wednesday November 07, 2012
This morning, the majority of Bill C-11, the copyright reform bill, took effect, marking the most significant changes to Canadian copyright law in decades. While there are still some further changes to come (the Internet provider notice-and-notice rules await a consultation and their own regulations, various provisions related to the WIPO Internet treaties await formal ratification of those treaties), all the consumer oriented provisions are now active. These include:
  • The addition of education, parody, and satire as fair dealing purposes.
  • The creation of a non-commercial user generated content provision that creates a legal safe harbour for creators of non-commercial UGC (provided they meet four conditions in the law) and for sites that host such content. 
  • The adoption of several new consumer exceptions including time shifting (recording of television shows), format shifting, and the making of backup copies.
  • Changes to the statutory damages rules that distinguish between commercial and non-commercial infringement. The law now includes a cap of $5000 for all non-commercial infringement. The change reduces the likelihood of lawsuits against individuals for non-commercial activities and would apply to educational institutions engaged in non-commercial activity and significantly reduce their potential liability for infringement.
  • The inclusion of an exception for publicly available materials on the Internet for education. This covers the content found on millions of websites that can now be communicated and reproduced by educational institutions without the need for permission or compensation.
  • The adoption of a technology-neutral approach for the reproduction of materials for display purposes. The current law is limited to manual reproduction or on an overhead projector. The provision may be applicable in the online learning context and open the door to digitization activities.
  • The implementation of a distance learning provision, though use of the exception features significant restrictions that require the destruction of lessons at the conclusion of the course.
  • The inclusion of a restrictive digital inter-library loans provision that will allow for digital transmission of materials on an inter-library basis, increasing access to materials that have been acquired by university libraries.
  • A new exception for public performances in schools, which will reduce licensing costs for educational institutions.
There are several other notable provisions and exclusions. First, although the notice-and-notice provisions for Internet providers have not taken effect, but the decision to stop short of the U.S.-style notice-and-takedown or a notice-and-termination rule is a huge victory for Canadians that provides a balanced approach safeguarding privacy and access to the Internet.  Second, the government also rejected an expansion of the private copying levy.  In fact, the government today also published regulations specifically excluding MicroSD cards from the levy. Third, the law includes an "enabler provision" that will make it easier for rights holders to sue sites or services that facilitate infringement.

Fourth, the digital lock rules are now also in effect. This was the most controversial aspect of the bill as the government caved to U.S. pressure despite widespread opposition to its restrictive approach. There are some exceptions to the digital lock rules (including for law enforcement, interoperability, encryption research, security, privacy, unlocking cellphones, and persons with perceptual disabilities), but these are drafted in a very restrictive manner.  The government has established a regulatory process to allow for new digital lock exceptions, which creates the possibility of Canadians seeking new exceptions to at least match some of the U.S. exceptions on DVDs or streaming video. At the moment, Canada is arguably more restrictive than even the U.S., though the digital lock rules do not carry significant penalties for individuals. Under Canadian law, it is not an infringement to possess tools or software that can be used to circumvent digital locks and liability is limited to actual damages in non-commercial cases.

As I wrote earlier this week, copyright is part of a sea change in digital policy making in Canada. In 2007, the government was hours away from introducing a bill that contained virtually no user-oriented provisions. Today, a bill took effect that has its flaws but also creates some of the most expansive copyright user rights in the world.